Alhaji Habib Oyede V. Kamoru Olusesi & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J.C.A.
In suit No. HCT/229/94 filed in the Otta Judicial Division of Ogun State High Court of Justice, the plaintiff in a representative capacity instituted an action jointly and severally against the three defendants.
The parties to this action filed and exchanged pleadings, which were amended several times over. In the eventual amended statement of claim, the plaintiff in paragraph 35 of that pleading severally and jointly claimed the following reliefs against the defendants:
“(1) An order that the partition carried out by the late A. B. Apatira as embodied in survey plan Nos. AB 872 and A/B/OG dated 6th June, 1983, partitioning the land into parcels of ‘A’ and ‘B’ for the Oyede and Ajayi-Ekun branches of Adelu family is in conformity with –
(i) High Court judgment of 4th June, 1979, in suit No. HCL/22/78.
(ii) High Court judgment of 6th July, 1981, in suit No. HCL/38/79.
(iii) High Court ruling of 15th April, 1985, in suit No. HCL/27/84.
(iv) Court of Appeal judgment of 20th March, 1986, in suit No. CA/I/92/84.
(2) A declaration that the plaintiff for himself as head and representative of Oyede family are the persons entitled to the customary/statutory right of occupation (sic) of all that piece or parcel of land situate, lying and being the area of land marked ‘A’ on Survey Plan Nos. AB 872 & A/B/OG dated 6th June, 1983, drawn by licensed surveyor late A. B. Apatira and covered by the judgments and ruling of the following courts:
(i) High Court judgment of 4th June, 1979, suit No.HCL/22/78.
(ii) High Court judgment of 6th July, 1981, in suit No. HCL/38/79.
(iii) High Court ruling of 15th April, 1985, in suit No. HCL/27/84.
(iv) Court of Appeal judgment of 20th March, 1986 in suit No. CA/I/92/84.
(3) The sum of five hundred Naira (N500.00) as damages for trespass committed by the said defendants, their servants, agents and/or privies on the said land.
(4) A perpetual injunction restraining the defendants, their servants, agents and/or privies from further acts of trespass on the said parcel of land marked ‘A’ on survey plan Nos. AB 872 & A/B/OG dated 6th June, 1983, drawn by licensed surveyor late Adio B. Apatira particularly the area edged green on survey plan No. SOAA/OG/98/34, dated 9th October, 1998, and drawn by licensed surveyor Segun Osifeso which is hereby pleaded.
Annual rental value – N40.00.”
Both the 1st and 2nd defendants filed a joint further and further amended statement of defence. The 3rd defendant filed a separate statement of defence.
At the hearing in the trial court, two and three witnesses respectively testified for the plaintiff and the 1st and 2nd defendants. The 3rd defendant did not testify or call any witness.
Before the parties adduced evidence at the trial court both learned Counsel consensually identified only one issue from their pleadings and urged the learned trial Judge to determine the case before him on only that issue, which is whether or not, the family land in dispute in this case has been partitioned as ordered by Delano, J. in his judgment in suit No. HCL/38/79 – Mustapha Oyelusi and Ors. v. Sadiku Olusesi delivered on 6th July, 1981. Aside this, the learned Senior Advocate for the plaintiff with the consent of the learned Counsel for the defendants sought and got leave of the trial court to exhibit certified true copies of the judgment in suit No. HCL/38/79, delivered on 6/7/81; ruling in suit No. HCL/27/84 and plan Nos. AB872A & B/OG dated 6/6/83, delivered on 15/4/85; certificate of occupancy dated 20/4/95; ruling in suit No. HCL/229/ 94 delivered on 20/12/94 and ruling in suit No. HCL/229/94 delivered on 17/5/95 as exhibits A, B, C, D and D1 respectively.
The items of evidence adduced by the plaintiff and the 1st and 2nd defendants shall be briefly stated. Thus, on his part, the plaintiff testifying as the P.W.1 said that he belongs to Oyede branch of the Ikowogbe Royal Family of Otta. The other branch of the Ikowogbe Royal Family is Ajayi Ekun. He instituted the action in point on behalf of himself and the Oyede branch of the Ikowogbe Royal Family against Ajayi Ekun Family, which is the other branch of the same Royal family. He identified exhibit A which is the judgment in which the trial court presided over by Delano, J. (as he then was) ordered that the land in dispute be partitioned and that the partition was carried out by late Mr. A. B. Apatira, a licensed surveyor.
Members of both Oyede and Ajayi-Ekun branches of Ikowogbe Royal Family were present, when the partitioning of the said family land took place. He also identified exhibits F and F1 as the receipts for services rendered by the said surveyor at the instance of the Ikowogbe Royal family. He equally identified exhibit B1 as the survey plan made by late Mr. A. B. Apatira after carrying out the partitioning. On being cross-examined by the learned Counsel for the 1st and 2nd defendants, the P.W.1 said that Mr. Jonathan Edun Adeniji and not Mr. Emmanuel Falodun was the head of the lkowogbe Royal Family.
The P.W.2, Mr. Segun Osifeso, registered surveyor, essentially testified that at the instance of the plaintiff, he prepared a composite survey plan (exhibit G) in respect of the land in dispute. He expatiated that there was a building on the land in dispute.
On the part of the 1st and 2nd defendants, Mr. Emmanuel Babatunde Falohun, a retired bookseller, who hailed from the same Oyede branch of the Ikowogbe Royal Family testifying as the D.W.1, asserted that he and not Oyede is the true head of Oyede family. He particularly testified that the Ikowogbe Royal family land has not been partitioned in keeping with the decision in exhibit A (that is to say judgment by Delano, J. in suit No. HCL/38/79 delivered on 6th July, 1981). He denied contributing to the making of exhibits B1 and G. He also denied knowing Mr. A. B. Apatira and Segun Osifeso, the surveyors. He asserted that the two branches of the Ikowogbe Royal family still jointly own the family land, which is the subject of dispute. On being cross-examined, the D.W.1 maintained that the family land in dispute has not been partitioned. He denied being allotted any plot from the family land after the judgment in exhibit A was delivered on 6th July, 1981. He further denied contributing towards partitioning the family land in dispute in order to accord with the order in exhibit A.
Mr. Kamorudeen Asalu, a member of the Ikowogbe Royal Family and its General Secretary testifying as the D.W.2 said that the Ikowogbe Royal Family granted an undeveloped plot of land from the family land to the 1st defendant in 1976 as evidenced by exhibit H. The 1st defendant after the grant erected a fence and a gate on the land. He, 1st defendant, thereafter sold the said land to the 3rd defendant with the consent of the family. He is aware of exhibit A and the order made therein. The Ikowogbe Royal Family land had not, to the best of his knowledge, been partitioned in accordance with the conditions stipulated in exhibit A nor has the family decided to partition it. He referred to exhibit K for the enrolment order made by Onashile, J. in suit No. HCL/27/84 wherein the application was struck out for want of diligent prosecution on 15th March, 1989. He further testified that the Ikowogbe Royal Family had since 1981, been ratifying sales of its land and issuing deeds of conveyance as reflected in exhibits L, M and N. He denied making any contribution for the purpose of partitioning the family land.
The 1st defendant testifying as the D.W.3 admitted that he is of the same Ikowogbe Royal Family as the plaintiff. He identified exhibit H as evidence of the allotment of family land given to him at his request in 1976. He fenced the land and erected a gate thereon. He thereafter, with the consent of the family sold the land to the 3rd defendant. His father did not tell him that he contributed money towards partitioning the Ikowogbe Royal Family land in keeping with the order in exhibit A. He denied accompanying the plaintiff and Mr. A. B. Apatira, the surveyor, to the land covered by exhibit B1 (the survey plan). On being cross-examined, the D.W.3 further asserted that the family land in dispute has not been partitioned. He maintained that he had title to the land he sold to the 3rd defendant. He denied that the 3rd defendant started developing the land he sold to him (the 3rd defendant) during the pendency of the instant case. The 3rd defendant neither adduced evidence nor called evidence. At the close of the case for the defence, the learned Counsel for the plaintiff and the defendants addressed the court. The learned trial Judge in a considered judgment held, inter alia;
“As it is my view that Oyede branch owns no land exclusively, and as whatever acts of possession the Oyede branch had been exercising on any part or portion of Ikowogbe Royal Family land is hinged upon the partition of part of the said family land to that branch pursuant to exhibit B1, which I have held not to be in conformity with the order of Delano, J. in exhibit A, I hold that the plaintiff has not established any title to any part of the Ikowogbe Royal Family land to sustain the claim for trespass against the defendants, particularly the 3rd defendant who claims the ownership of the portion of land on which he has a structure. Adelu or Ikowogbe Royal Family land, until it is partitioned in conformity with the order in exhibit A, remains vested in that family and it is the said Ikowogbe Royal Family that can, in my view, maintain an action for trespass in the circumstances of this case. The fourth of the plaintiff’s claim is for perpetual Injunction …
This claim, in my view, requires no elaborate consideration in view of the last finding that the plaintiff has failed to sustain his claim for trespass against the defendants as he failed to establish the exclusive title of the Oyede branch to any portion of the Ikowogbe Royal Family land. Since the plaintiff has not established that the defendants committed any trespass on any land that the Oyede family owns or has exclusive possession of, then an injunction to restrain the defendant from committing any acts of further trespass on the plaintiff’s land has no basis. On the whole all, the claims of the plaintiff fail and they are hereby dismissed.”
The plaintiff, now appellant, was utterly aggrieved by this decision and he appealed to this court on five grounds. The appellant raised the following three issues in his brief of argument for the determination of this appeal:
- Whether the learned trial Judge was right in holding that the land in dispute has not been partitioned as ordered by Hon. Justice I.B. Delano, J. in his judgment delivered in suit No. RCL/38/79 between Mustapha Oyelusi v. Sadiku Olusesi admitted as exhibit A.
- Whether the learned trial Judge was right to have suo motu raised two additional issues for determination, i.e.
(a) Whether or not, the services of a surveyor agreeable to both parties, i.e. the Oyede and Ajayi-Ekun branches of Adelu family was engaged to survey the land as a whole; and
(b) Whether the area already granted out was demarcated on the vast area left.
- Whether the appellant established issue estoppel having regards to (sic) the ruling of Sonoiki, J. admitted as exhibits B and B1 delivered on 15th April, 1985, that the land had been partitioned into two portions as ordered by Delano, J. in his judgment and admitted as exhibit A.”
The defendants, now respondents, jointly identified only one issue for the determination of this appeal.
The issue reads:
“Whether or not, the ruling of Sonoiki, J. in suit No. HCL/27/84 has created issue estoppel or invoked the doctrine of resjudicata between the contending parties.”
The respondent filed a cross-appeal containing only one ground.
The respondent/cross-appellant apparently did not raise any issue from the ground of cross-appeal. I shall presently deal with this inadvertence that had arisen in the cross-appeal. The appellant/cross respondent, however, identified the following issue (albeit inelegantly) from the cross-appellant’s ground of appeal:
“Whether the lower court can raise and on issue No. (2) raised suo motu outside the issue agreed to be determined by the court between the parties (sic).”
I shall first of all deal with the appeal and thereafter consider the cross-appeal. At the hearing of the appeal, the learned Counsel for the appellant and respondent adopted and relied on their respective briefs of argument of the appellant and the respondents for the appeal and cross-appeal without any amplification. It is pertinent to observe that on a close examination of the five grounds of appeal and the three issues appeared to have been distilled from them by the appellant, issue 2 does not seem to have arisen from any of the grounds of appeal. The law is now very well settled that issue or issues framed for determination in an appeal must be related to or predicated upon a ground or grounds of appeal. Both the appellant and the respondent are entitled to formulate their respective issues which must also flow from the ground or grounds of appeal in the matter. If, however, any issue has no bearing with the ground of appeal, it becomes irrelevant. It (the irrelevant ground) and arguments canvassed in support will accordingly be struck out for want of competence. See Chuke v. F.H.A. (1999) 10 NWLR (Pt. 624) 574 at 580-581; Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549 at 570 and Madagwa v. State (1988) 5 NWLR (Pt. 92) 60.
In the instant case, it is not in doubt that the learned trial Judge at page 110 of the record of appeal raised the two questions, which formed Issue 2 that he would consider them in the determination of the case before him. Since the appellant felt aggrieved by those questions raised in the judgment of the trial court, the only way to legally vent his grievance, is making it a ground of appeal on which Issue 2 could have been legally predicated. He clearly failed to take this course of action. The consequence is that the said issue and the attendant arguments are baseless and are accordingly struck out or expunged from the appellant’s brief of argument.
The appellant is left with canvassing only issues 1 and 3.
On issue 1, J. Akanike, Esq. the learned Counsel for the appellant referred to exhibit A which is a judgment in suit No. HCL/38/79 delivered by Delano, J. on 6th July, 1981, wherein the said learned trial Judge ordered, inter alia, a partition into two of the Ikowogbe Royal Family land. He contended that the partition was carried out by surveyor A. B. Apatira at the instance of the parties. He referred to the ruling of Sonoiki, J. in suit No. HCL/27/84 as per exhibit B which held that the Ikowogbe Royal Family land had been partitioned. Apart from holding that the said land had been partitioned, the learned trial Judge also granted an order of interim injunction restraining the defendants/respondents from entering, surveying or erecting any structure on the area of land marked ‘A’ on exhibit B1. He pointed out that the parties in the instant case leading to this appeal were also the parties in the earlier suits Nos. HCL/38/79 and HCL/27/84 respectively presided over by Delano, J. and Sonoiki, J. in the capacities of principals, privies, blood relations or members of either Oyede or Ajayi Ekun branches of Ikowogbe Royal family. Learned Counsel for the appellant submitted that with the foregoing there had been partition of the land in dispute into two parcels namely A and B as ordered by Delano, J. in his judgment (exhibit A) and affirmed by Sonoiki, J. in his ruling and survey plan exhibit B and B1 respectively. He equally referred exhibit J. (the judgment of Jacobs, J.) wherein the court also found that the land had been partitioned as ordered by Delano, J. in exhibit A. He submitted that the respondents are estopped from denying the existence of the partition in exhibits B and B1 particularly as shown on exhibit G (survey plan of the land in dispute drawn by Segun Osifeso).
As regards the issue of partition, the learned Counsel for the appellant submitted that it (the partition) puts an end to the common interest of the two branches of Adelu family as each branch now owns different portions of the land exclusively. He argued that since the respondents and/or their predecessors-in-title who were parties to the judgment in exhibit A lost the appeal No. CA/I/92/81 (exhibit O), the latter judgment (exhibit O) had therefore affirmed the sanctity, efficacy and enforceability of the order on partition by Delano, J. in exhibit A. He further submitted that the learned trial Judge was in error to have held that there was no partition of the land in dispute as ordered by Delano, J. He urged the court to set aside the decision of the trial court on the issue of partition.
On issue 3 which relates to issue estoppel, the learned Counsel for the appellant submitted that the 1st and 2nd respondents are caught by the doctrine of issue estoppel or estoppel per Judicatam because first, the parties in exhibits A and B and in the instant case are the same either by themselves, their privies, offspring’s or successors-in-title whose interests have been demarcated as per exhibit B. Secondly, both branches of Oyede and Ajayi Ekun of Ikowogbe Royal Family had litigated on the issue of partition as reflected in exhibits A and B. He relied on section 54(1) of the Evidence Act, 1990 and the cases of Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27 and Ito v. Ekpe (2000) 3 NWLR (Pt. 650) 678 at 694. He further submitted that the three essential elements for the application of issue estoppel are available in this case in that the parties, the subject matter and the issue in the previous actions that is to say exhibits A and B are the same as in this case. The issue is the partitioning of the family land. He therefore urged the court to invoke the doctrine of issue estoppel. He relied on a number of cases including Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1 at 30-3 1; Banire v. Balogun (1986) 4 NWLR (Pt. 38) 746 at 753 and Nwaneri v. Oriuwa (1959) 4 SC 132, (1959) SCNLR 316. He therefore urged the court to hold that the learned trial Judge was in error when he held that the doctrine of issue estoppel did not operate against the respondents giving the circumstances of this case. He further urged the court to set aside the findings of the trial court.
In response, J. F. Ogunniyi, Esq., the learned Counsel for the respondents stated that the crux of the matter in this appeal is whether or not the ruling of Sonoiki, J. in suit No. HCL/27/84 has created issue estoppel or invoked the doctrine of res judicatam between the contending parties. He answered this issue in the negative. He argued that, in the instant appeal, issue estoppel did not arise because the decision of Sonoiki, J. in suit No. HCL/27/84 was not final. The ruling therein is instead for an interlocutory injunction. He referred to page 176 of Mozley & Whitley’s Law Dictionary, 9th Edition on the definition of “Interim Order”, Interlocutory Decree or Order and “Interlocutory Injunction” which is:
“(a) An order to take effect provisionally or until further direction. The expression is used especially with reference to an order given pending an appeal;
(b) A Decree or order which does not conclude a cause;
(c) An injunction granted for the purpose of keeping matters in status quo until a decision is given on the merits of the case.”
The learned Counsel contended that it is wrong to hold that the ruling given by Sonoiki, J. in suit No. HCL/27/84, delivered on 15/4/85, which is in the nature of an interlocutory order, is not a final judgment. ‘b0He pointed out that after that ruling had been delivered by Sonoiki, J. the case, that is to say suit No. HCL/27/84, was transferred to another court of coordinate jurisdiction presided over by Onashile, J. to be tried de novo. Onashile, J. considered similar issue as raised in exhibit B, that is suit No. HCL/27/84 (exhibit K) presided over by Sonoiki, J. and in his ruling struck it out on 15/3/89, for want of diligent prosecution. He pointed out that in between the two rulings there was no appeal. He further pointed out that since Sonoiki, J. based his interim order on merely affidavit evidence without taking oral evidence that could not be judgment on the merits which could sustain a plea of res judicata or doctrine of issue estoppel. He relied on the cases of Kossen (Nig.) Ltd. & Anor. v. Savannah Bank of (Nig.) (1995) 12 SCNJ 29 at 40, (1995) 9 NWLR (Pt.420) 439; and Commerce Assurance Ltd. v. Buraimoh Alli (1992) 4 SCNJ 145 at 253, (1992) 6 NWLR (Pt. 246) 132. He finally urged that, on the face of abundant evidence before the trial court, this court should affirm the decision of the trial court.
From the state of the record of appeal and particularly the briefs of argument of the parties, I am of the view that the two issues which relate to partition of the Ikowogbe Royal Family land and issue estoppel are of particular moment in the consideration of this appeal. I shall consider them sequentially.
The issue of partition was considered by Achike, JSC of blessed memory in the case of Olorunfemi & Ors. v. Asho & Ors. (2002) 74 LRCN 45; (1999) 1 NWLR (Pt.585) 1 and said at page 68:
“The term “partition” may be used in its technical and strict sense to mean where property formerly belonging to a family is shared or divided among the constituent members of that family whereby each member of such family is conveyed with and retains exclusive ownership of the portion of the family land granted to him. In this sense, family ownership of such property is automatically brought to an end.”
It is clear from the foregoing that partition is one of the ways of determining family ownership of property. The genesis of the issue of partition of family land came about when the appellant instituted action against the respondent urging the trial court to partition the family land situate, lying and being at Iganmode bye pass, Oruba Quarters, Otta into two between Oyede and Ajayi Ekun branches of Ikowogbe Royal Family, otherwise known as Adelu family. The learned trial Judge, Delano, J (as he then was) in suit No. HCL/38/79 delivered his judgment on 6th July, 1981, and specifically held as regards the relief of partition sought by the appellant as follows:
“From above and finally, it is my view that the land should be partitioned in the interest of peace and tranquility. It is therefore ordered that the vast area of land in plan No. SH980 drawn by Olusesi, licensed surveyor and dated April 18th, 1973, should be partitioned into two between the Oyede and Ajayi Ekun branches of Adelu family. The service of a surveyor, agreeable to both parties should be engaged to properly survey the land as a whole and demarcate the area already granted out and the vast area of land left. If partition is impracticable in the exercise of the discretionary power of the court, I order that the vacant vast area of land after the survey should be sold and proceeds equitably divided between two branches. This shall be the judgment of the court.”
(italics for emphasis)
Following this judgment (exhibit A), the appellant filed an application in suit No. HCT/27/84 seeking an interim injunction to restrain the respondent from entering, surveying or erecting any structure on the area of land marked A on survey plan Nos. AB 872 & A/B/OG dated 6th June, 1983, until the determination of the action therein. Sonoiki, J. in granting the interim injunction to the appellant also ordered as follows.
“The defendant has shown glaringly enough that he is dead opposed to the partition ordered by Delano, J. … I hold that the partition carried out by late A. B. Apatira is in conformity with the judgment of Delano, J. and that the defendant is bound by it.”
In view of the foregoing, the question is: What is the judgment of Delano, J. in exhibit A? The answer is clearly set out in the ultimate paragraph of that judgment, which I have already reproduced. Thus, in exhibit A (the judgment of Delano, J.) it was ordered that the vast area of land shown on plan No. SH980 drawn by Olusesi, licensed surveyor and dated April 18, 1973 (not exhibited) should be partitioned into two between Oyede and Ajayi Ekun branches of the Adelu family by employing the services of a surveyor agreeable to both parties and demarcate the area already allotted out of the said vast area. If, however, partitioning of the vast land is impracticable it should be sold and the proceeds therefrom be equitably divided between the two branches of Adelu family. There is no dispute about the identity of the land in controversy. The question is: did the two branches agree on which surveyor would survey and partition the land? The appellant strenuously argued that one A. B. Apatira, a licensed surveyor who had since died was consensually employed by the two branches in conformity with the decision in exhibit A and relied not only on oral evidence, but also on exhibits BI, F and F1. Exhibits B1, F and F1 are the survey plan and receipts drawn and issued respectively by one A. B Apatira, a licensed surveyor, the appellant claimed both parties employed. In the circumstances, Mr. Apatira is quite pivotal to the issue of whether or not, the two beneficiaries of the land in dispute consensually agreed that he should survey the said vast land and partition it. His evidence is very vital.
Unfortunately, Mr. Apatira was not alive to accord the trial court of the factual situation of which of the two branches commissioned him to survey and partition the land in dispute. The appellant equally relied on exhibits F and F1 in support of his claim that the two branches agreed to commission Mr. Apatira in keeping with the directive in exhibit A. The functional aspect of exhibits F and F1 as regards who paid for the services of Mr. A. B. Apatira is not dissimilar.
It reads, inter alia:
“Adio B. Apatira M.N.I.S …
SW8/81 Lagos Bye Pass
Oke Ado,
P. O. Box 1448,
Ibadan, Nigeria
25th Sept., 1982
Received from T. O. Oladokun on behalf of Oyede Family, the sum of One thousand Naira, only (N1,000.00), being part payment for the processing of a parcel of land totaling 223 acres.
(To B/ce N1,000.00)
Signed:
Receiver/Signature
(J. O. Ojo Manager)
For: Adio B. Apatira.
Licensed Surveyor
P. O. Box 1448,
Ibadan.”
(Italics for emphasis).
It is crystal clear from exhibits F and F1, that the sum of N2,000.00 paid to Mr. A. B. Apatira by Mr. T. O. Opadokun, on behalf of Oyede family was received by Mr. J. O. Ojo, who was the manager of Mr. A. B. Apatira. There is uncontroverted evidence that Mr. Apatira is dead. It is not unlikely that Messrs. T. O. Opadokun and J. O. Ojo, who appeared to have actively participated in the processing of a parcel of land are still alive. The appellant ought to have invited them to substantiate his claim that the condition precedent in exhibit A as far as partitioning the land in dispute is concerned had been satisfied. Equally apparent on exhibits F and F1 is that the processing exercise carried out by Mr. A. B. Apatira was only on behalf of Oyede family. Can Oyede branch, whose strained relationship with Ajayi Ekun branch on the ownership of Ikowogbe Royal Family land, get the co-operation of the latter in the partitioning exercise? The answer is in the negative.
The respondents were patently silent in their joint brief of argument on the issue of partitioning the land in dispute. This obvious lapse, notwithstanding, this appeal shall be decided on the justice of the available evidence as it is the primary function of any court of competent jurisdiction to perform.
A close observation of exhibits L and N showed how the appellant teamed up with the 1st and 2nd respondents to sell the Ikowogbe Royal Family land to Madam Ramota Adeoye and Mr. Adejare Olujide Atanda on 12th June, 1994, and 9th April, 1999 respectively. If indeed the family land in dispute had been partitioned as per exhibit B (that is the ruling in HCL/27/84 delivered on 13th April, 1985) could there be any effective sales as portrayed by exhibits L and N? I doubt not. The concept of partition connotes that where property belonging to a family is shared or divided among constituent members of that family, each member of such family retains exclusive ownership of the portion of the family land partitioned to him. In effect, family ownership of such property is automatically brought to an end. This is quite different from the principle of allotment of family land which can validly be assigned or sold with only the consent of the entire family. See Olorunfemi & Ors. v. Asho & Ors. (supra) at age 68. A family land that has been partitioned is permanently robbed of family ownership. Since the land in dispute in the instant case was still subject to family control and sale in which the Oyede and Ajayi Ekun branches of the Ikowogbe Royal Family participated in 1994 and 1999 (supra), the said land had therefore not been partitioned contrary to the notion of the appellant as borne out of exhibit B. In these circumstances, I agree with the learned trial Judge who held; inter alia, at page 129 of the record of appeal that the appellant failed to establish that the service of late Mr. A. B. Apatira was that of the surveyor the Oyede and Ajayi Ekun branches of Ikowogbe Royal Family agreed upon to survey the said family land. Therefore, there had not been a partition of the said land in conformity with the order of Delano, J. in exhibit A. Issue 1 fails. It is accordingly resolved against the appellant.
Issue 3 is on Issue estoppel. It is common ground that the parties, and/or their privies as well as the issue in exhibits A, B and a are the same. Is it enough that when the parties and the issue are the same in a number of cases, the doctrine of issue estoppel will be invoked? In order to answer this question, it is pertinent to consider what the doctrine of estoppel involves. Estoppel, in its literal sense, means that a party is prevented by his own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct and has acted accordingly on it. Estoppel in essence, is a bar or impediment which precludes the allegation or denial of a certain fact or state of facts in consequence of a final adjudication of the matter in a court of law. An estoppel, therefore, is an admission or something which the law treats as equivalent to an admission of an extremely high and conclusive nature that a party whom it affects is not permitted to aver against it or offer evidence to controvert it. See Duchess of Kingston’s Case (1796) 2 Smiths Leading Cases, 12th Edition, 754, cited approvingly by the Supreme Court in the cases of Nwaneri & Ors. v. Oriuwa & Ors. (1959) SCNLR 316 and Ebba & Ors. v. Ogodo & Ors (2000) 10 NWLR (Pt. 675) 387 at 402-403 (SC).
The two common place types of estoppel are cause of action estoppel and issue estoppel. Thus, cause of action estoppel occurs where one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause as that cause of action is said to merge in the judgment otherwise described as transit in rem judicatam.
The second type of estoppel described as estoppel inter parties occurs where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies, in these circumstances, issue estoppel arises. This is based on the principle that a party is not allowed to contend the contrary or opposite of any specific point which having been once distinctly put in issue has with certainty and solemnity been determined against him. See Ebba & Ors. v. Ogodo & Ors. (supra) at page 404.
It is common ground that the type of estoppel which appears to emanate from the circumstances of this appeal is issue estoppel or estoppel inter parties. The law is settled that issue estoppel apply whether the point involved in the earlier decision is one of fact or law or one of mixed law and fact. However, for the principle to apply in any given proceedings, all the following pre-conditions to a valid plea of issue estoppel or estoppel inter parties must be present:
(a) the same question must be determined in both proceedings (that is to say that the question for decision in the current suit must have been decided in the earlier proceeding),
(b) the decision relied upon to support the plea of issue estoppel must be final; and
(c) the parties or their privies must be the same which means that the parties involved in both proceedings must be the same.
(Italics for emphasis)
See Fadiora v. Gbadebo (1978) 3 SC 219 at 228 to 229; Oyerogba v. Olaopa (1998) 12 SCNJ 115 at 129 (1998) 13 NWLR (Pt. 583) 509 and Ito v. Ekpe (2000) 3 NWLR (Pt. 650) 678.
It is pertinent to add that when once it is made clear that the self same question is substantially in issue in the two suits, the precise form in which either suit is brought or the fact that the plaintiff in one case was the defendant in the other is immaterial, the estoppel subsists between the parties. See S. D. Ojo v. Jean Abadie (1955) 15 WACA 54 at 55 and Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27 at 43.
In the instant case, the appellant’s learned Counsel substantially relied on exhibit B to raise the plea of issue estoppel because according to him the issue of partition had been determined in that case. The issue of partition was first raised in exhibit A where Delano, J. ordered that the land in dispute be partitioned subject to certain conditions being satisfied. I need not delve into whether or not, the land in dispute had been partitioned because I had considerably dealt with it in the earlier part of this judgment. In exhibit B, it is opined that partition had been carried out according to the order in exhibit A. In both cases, the parties and issue were the same. The issue of partitioning which featured in those two cases (exhibits A and B) was part of the issues in the case which is the subject of this appeal. The learned Counsel for the appellant urged this court to hold that the 1st and 2nd respondents are caught by the doctrine of issue estoppel.
It is not in doubt, that the three conditions to sustain the plea of issue estoppel operate conjunctively. It is also clear that conditions (a) and (c) (supra) are present in the instant case. Condition (b) shall, however, be examined critically. The decision relied upon by the appellant is the product of a ruling which is an interlocutory order.
Interim order, interlocutory decree or order and interlocutory injunction are synonymous to each other. In effect, the meaning of one of them equally applies to the other. Thus, “interlocutory order” means:
(a) an order which takes effect provisionally or until further direction is given. The expression is used especially with reference to an order given pending an appeal;
(b) an order which does not conclude a cause of action;
(c) an injunction granted for the purpose of keeping matters in status quo until a decision is given on the merits.
A ruling by its very nature is provisional in its operation, until a more decisive or final order is made on the merits of the substantive matter. What is of particular moment in Issue 3 is whether or not the ruling of Sonoiki, J. in suit No. HCL/27/84 (exhibit B) created issue estoppel? In answering this question, I have to consider the judgment of Delano, J. Exhibit A and look beyond the ruling in suit No. HCL/27/84 delivered on 15/4/85 (exhibit B) to a subsequent case which bears the same suit number for which a ruling was also delivered on 15/3/89 (exhibit K). Thus, in exhibit A, the issue of partitioning the family land was first highlighted. In exhibit B, which was between the same parties and/or their privies was an application by the appellant for interim injunction against the respondent. This application was resolved from the affidavit evidence before Sonoiki, J. It is common place that often times, applications for interim or interlocutory injunctions are brought before the completion of pleadings from which issues between parties in litigation are identified, fixed and circumscribed. As pleadings in suit No. HCL/27/84 were not before Sonoiki, J. nor even available for the perusal of this court, it is difficult to say that he determined any issue apart from the application before him. It is a notorious fact that issues are invariably raised in pleadings and not in affidavit evidence. In effect, it can hardly be held that the issues in exhibits A and B are the same.
Apart from the inability of the appellant to disclose any issue in exhibit B, it is apparent from the record of proceedings that subsequent to the ruling in exhibit B, the same case was re-assigned to another court presided over by Onashile, J. who in the course of his deliberations struck out the case for want of prosecution. In effect, whatever was resolved in exhibit B became spent or ceased to subsist following the ruling (exhibit K by Onashile, J. which was the outcome of the case he started de novo). I agree with the learned trial Judge who held, inter alia, at page 122 of the record that no judgment was delivered in suit No. HCL/27/84, which this court can peruse to see whether the question determined concerned partition of the Ikowogbe Royal Family land. The three pre-conditions to sustain issue estoppel cross-appeal (ante). The arguments are patently at variance with both the ground and particulars of the only ground of cross-appeal. The law is that in the prevailing circumstances of the cross-appeal, the sole ground of appeal should be deemed abandoned and struck out. See Baridam v. The State (1994) 1 NWLR (Pt. 320) 250; Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516 and Joshua v. The State (2000) 5 NWLR (Pt. 658) 591 at 609.
The appellants/cross-respondents, however, appeared to have saved the cross-appeal vis-a-vis the only ground of appeal therein from being struck out by raising a relevant issue from it. It is now very well settled in brief writing that the respondent’s primary duty is to support the judgment appealed against by showing that the contentions of the appellant as to the grounds of appeal are without merit. But if the respondent who subsumes the cross-respondent decides to raise any issue, it should be based on the cross-appellant’s ground of appeal. If the cross-respondent’s issue is identified from the ground of cross-appeal such issue shall be considered by the court in the determination of the cross-appeal. See Atanda & Ors. v. Ajani & Ors. (1989) 3 NWLR (Pt. 111) 511 at 543-544. In the instant case, the cross respondent correctly identified the following issue from the only ground of the cross-appeal:
“Whether the lower court can raise and on issue No.2 raised suo motu (sic) outside the issue agreed to be determined by the court between the parties.”
Although, the foregoing issue is couched inelegantly, it flows from the only ground of cross-appeal. It is still an issue for consideration despite its inelegance.
I have already held that the cross-appellants could hardly sustain their only ground of cross-appeal because no issue was raised therefrom.
The learned Counsel for the cross-respondent referred to the two issues raised by the learned trial Judge in his judgment and submitted that it was wrong for him (the learned trial Judge) to have raised those issues suo motu, without giving the parties any opportunity to be heard. He contended that the approach of the trial court was contrary to the principle of fair hearing as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999. These submissions, I daresay, have no bearing with the issue raised by the cross-respondents. I will, however, state the position of the law that it is fundamental that a Judge whether at first instance or appellate level has total control of matters he adjudicates upon, He is at liberty to raise any relevant issue and determine it as the interest of justice demands. In particular, a trial Judge being a Judge of facts and law has the right to raise any issue suo motu. See Chief Harold Sodipo v. Lemminkainen O.Y & Anor. (1986) 1 NWLR (Pt.15) 220 at 234 and A.C.B. Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 26 at 44 and 45. If, however, the Judge raises an issue suo motu, he has a legal duty to give the parties the opportunity to react to the issues raised. A trial Judge certainly has no jurisdiction to raise an issue suo motu and unilaterally resolve it in his judgment without hearing the parties. See Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 350 at 370. It is common ground gleaned from the record of appeal that the learned trial Judge suo motu raised the issue complained about without allowing the parties to the case before him the opportunity to react to it. That recourse, in my view, was improper. I, however, failed to find any basis to hold that that the seeming impropriety occasioned any injustice or an affront on the doctrine of fair hearing as enshrined in section 36 of the 1999 Constitution. Thus, the learned trial Judge did not go beyond distilling the vexed issue described as issue (b) at page 110 lines 31 and 32 of the printed record. Page 110 lines 31 and 32 of the printed record read:
” … there would be no need for the court to concern itself with question (b).”
The learned trial Judge appeared to have cautioned himself in not hearing any opinion on the issue he raised suo motu without any inputs from the parties. This, to my mind, is in conformity with the principle that a trial Judge should be most cautious in raising issues suo motu. The rationale behind this is to maintain his role of an independent adjudicator. See Adeniran v. Alao (1992) (supra) at page 370; Maiyaki v. Maidoya (1988) 3 NWLR (Pt. 81) 226 and Adejumo v. David Hughes & Co. Ltd. (1989) 5 NWLR (Pt. 120) 146 at 157.
Issue (b) raised suo motu by the learned trial Judge is, in the prevailing circumstances, a mere expression of thought and no more. He (the learned trial Judge) was in no way functionally influenced by that expression in his final judgment. I will therefore see it as a non issue and it is discountenanced as an issue that is lacking in merit. In effect, the cross-appeal fails.
In retrospect, both the appeal and cross-appeal are devoid of merit. They are accordingly dismissed seriatim. The judgment of the trial court is affirmed. I make no order on costs.
Other Citations: (2005)LCN/1740(CA)
